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Labor Department Eyes Litigation Push for Paid Military Leave

March 16, 2022, 2:39 PM

The litigation push by military reservists seeking expanded paid leave benefits from their employers caught the attention of the Labor Department, which said it’s considering filing a brief in a Ninth Circuit appeal against Alaska Airlines Inc. and Horizon Air.

The department on Tuesday asked the U.S. Court of Appeals for the Ninth Circuit to extend the deadline for filing an amicus brief in pilot Casey Clarkson’s lawsuit seeking paid military leave from the airlines. The case’s novel legal issues are “of interest” to the department, which requested an extra 30 days to decide whether to file a brief supporting either Clarkson or neither party.

With Clarkson’s appeal, the Ninth Circuit is poised to become the third federal appeals court to address the recent series of cases targeting airlines and other employers for allegedly denying regular wages to pilots on military leave while offering paid leave to employees who are sick, grieving, or serving jury duty. The lawsuits claim this practice violates the Uniformed Services Employment and Reemployment Rights Act, the federal law extending job protections to workers who serve in the military.

Last year, both the Seventh and Third circuits sided with military reservists advancing these claims. The Seventh Circuit revived a case against United Airlines Inc., concluding that paid military leave is a right and benefit protected by federal law. The Third Circuit revived similar claims against FedEx Corp., saying that USERRA “does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.”

The department didn’t join the appeals against United and FedEx. The government “has not previously briefed the issues raised by this case,” according to the department’s filing with the Ninth Circuit.

The department represents itself.

Clarkson is represented by Block & Leviton LLP, Outten & Golden LLP, Crotty & Son Law Firm PLLC, Gupta Wessler PLLC, and Thomas G. Jarrard of Spokane, Wash. Alaska and Horizon are represented by Davis Wright Tremaine LLP, O’Melveny & Myers LLP, and Corr Cronin LLP.

The case is Clarkson v. Alaska Airlines, Inc., 9th Cir., No. 21-35473, motion for extension of time 3/15/22.

To contact the reporter on this story: Jacklyn Wille in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Carmen Castro-Pagán at

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